A couple in a legal marriage, one recognized by the extant laws in Nigeria can seek for various matrimonial reliefs under the Matrimonial Causes Act 1978. Section 114 of the Act states that these include: the dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights, jactitation of marriage, maintenance of a party, custody, guardianship or maintenance of children in a marriage, etc. The relief to be sought depends on the peculiar circumstance of the issues between the couple and their preferences. Certain procedures need to be followed and grounds that need to be proved to warrant an order enforcing any of the reliefs sought. This article will focus on legal/judicial separation in Nigeria, its implication and the grounds to be proved to establish it.
Though the term "separation" here might connote an end of the marriage, in the legal parlance it simply refers to a situation where the couple ceases to cohabit. Section 41 and 42 of the Act and the case of Emmanuel v. Funke (2017) LPELR-43251 (CA) emphasize that a decree of judicial separation relieves the parties from the obligation to cohabit while it is in the operation, all other rights, responsibilities and obligations remain intact. The obligations that are not affected by legal separation include the followings:
- Neither party can remarry while the decree subsists
- The marriage is still intact
- The welfare, maintenance and education of the children of the marriage must be catered for.
- Either party may institute an action against the other in contract or tort.
- Where either of the party dies intestate (without a will) property of the deceased shall devolve to the surviving party.
- Where the husband is ordered by the decree to pay maintenance to the wife and defaults, he shall be held liable for necessaries supplied for the wife's use.
A decree for judicial separation is not simply granted, the parties must prove either of the acts stated in Sections 15(2) and 16(1) of the Act. A party must in the petition filed before the High Court of any State in Nigeria cite any one or more of the following as the ground for a decree of judicial separation:
- That the respondent has willfully and persistently refused to consummate the marriage
- That since the marriage, the Respondent has committed adultery, which the Petitioner finds it intolerable to live with. Such acts include, rape, sodomy, bestiality, habitual drunkenness, drug addiction, is of unsound mind etc.
- That the Respondent has deserted the Petitioner for a continuous period of 1 year immediately preceding the filing of the petition.
- That the parties have lived apart for a continuous period of 2 years or 3 years immediately preceding the filing of the petition, however for that of 2 years, the Respondent does not object to the granting of the decree
- That the other party has refused to comply with a decree for restitution of conjugal rights for at least a year.
- That the other party has been absent from the marriage for such a time to raise reasonable presumptions of death.
In conclusion, a judicial separation unlike a decree for dissolution of a marriage does not bring an end to the marriage, rather it among other things enables them to live apart while still being in lawful marriage. Unlike a divorce, if the parties subsequently decide to resume cohabitation they can simply apply for a discharge of the decree for judicial separation. The decree of judicial separation can also be used as a ground for instituting a decree for dissolution of marriage. Therefore, where freedom from cohabitation is not sufficient, proceedings for dissolution can be commenced, which makes the process easier as some of the grounds for dissolution would have been proved earlier during proceedings for legal separation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.